Judge rules that fishing rights are protected by 1837 federal treaty.
April 10, 2013: Twenty-one more individuals will face charges in the bust of the northern Minnesota fish poaching ring reported last week by the U.S. attorneys office in Minneapolis. The Department of Natural Resources announced the state charges Monday morning, adding to federal indictments unsealed last week against 10 other people. The three-year investigation, known as Operation Squarehook, involved about 60 officers from the DNR, the Fish and Wildlife Service and tribal authorities from the Red Lake and Leech Lake bands, the DNR said. Here, Jim Konrad, the DNR's chief enforcement officer, talks about the operation.
A federal judge in Minneapolis on Monday threw out the indictments of five American Indians arrested in a major fish poaching case on Indian reservations in northern Minnesota, saying the men were protected under an 1837 treaty.
The decision by Judge John Tunheim of Minneapolis appears to be directly opposite to rulings by U.S. District Judge Richard Kyle of St. Paul on Oct. 31, creating a legal tangle that will likely keep attorneys and the 8th Circuit Court of Appeals busy well into 2014.
The contradictory decisions were described by several court observers as very unusual.
Former federal prosecutor Paul Murphy, who headed the criminal division of the U.S. attorney’s office from 1995 to 2005, said he could not recall two federal justices issuing opposing decisions in the same district and growing out of the same undercover investigation.
“Normally, in related cases, the court assigns all of them to one judge …,” Murphy said.
In a strongly worded memorandum filed Monday, attorneys for two Red Lake Indians whose indictments were not dismissed by Kyle — Thomas Sumner, 55, and Brian Holthusen, 48 — appealed to Kyle to reconsider his position in light of Tunheim’s “careful analysis.”
Lawyers Robert Richman and Shannon Elkins wrote: “There is now not only a split of authority in this district, there is a split of authority in what is, for all practical purposes, a single prosecution.
“We now have the unseemly situation of 5 Indian defendants having had their cases dismissed for violation of treaty rights and two other defendants who enjoy the protection of the exact same treaties awaiting trial for the exact same conduct. This situation cannot help but discredit the court in the eyes of the public.”
Background of cases
The five men whose cases were tossed by Tunheim were among 10 indicted on April 9 on charges of buying and selling hundreds of thousands of dollars’ worth of walleyes netted from lakes on the Leech Lake, Red Lake and other reservations in Minnesota. Charges against 28 other people were filed in state and tribal courts.
Tunheim ruled that an 1837 Treaty with the Chippewa Indians protected the right of Indian defendants to fish on their reservations and that Congress “has not specifically abrogated that right.”
Tunheim rejected the findings of U.S. Magistrate Judge Leo Brisbois, who concluded that the men had violated the federal Lacey Act, which makes it illegal to sell or buy fish in violation of any law, including Indian tribal law.
Tunheim’s rulings came in two separate decisions, one involving the indictments of Michael Brown, Jerry Reyes, Marc Lyons and Frederick Tibbetts, and the second of Larry Good.
At the time of the indictments, Jim Konrad, enforcement director for the Department of Natural Resources, called it “a very big deal.”
Three of the men, Brown, 54; Reyes, 51; and Lyons, 62, are enrolled members of the Leech Lake Band of Chippewa Indians; Tibbetts, 62, is a member of the White Earth Band of Chippewa Indians; and Good, 59, is enrolled in the Red Lake Band.
While Tunheim ruled in a 24-page decision that Magistrate Brisbois was mistaken in concluding that the Lacey Act should apply to the defendants, Kyle said Brisbois’ findings were correct. Kyle wrote a two-page memo endorsing Brisbois’ position, which dealt with an assortment of defense motions, not just the Lacey Act.
Brisbois wrote “that the federal regulations governing fishing on Red Lake legitimately limit” the fishing rights of the defendant.
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